RMP Reconsidered (Proposal) – What are the Takeaways?

On May 30, 2018, the Environmental Protection Agency (EPA) published proposed revisions to the Risk Management Program (RMP) rules that would largely undo changes to the (stayed) final rule published on January 13, 2017. See 83 Fed. Reg. 24850 (May 30, 2018). Although not a complete one hundred eighty degree U-turn, the revised proposed rule pretty much guts most of the 2017 changes. Rather than spending time parsing out what stayed from what was removed, I thought it would be more useful to consider the underlying message.

EPA has no ongoing obligation to modify RMP. EPA notes that section 112(r) of the Clean Air Act (CAA) contains four provisions that require EPA to promulgate regulations. EPA believes that they have “met all of its regulatory obligations under section 112(r) prior to promulgating the RMP Amendments rule.” 83 Fed. Reg. at 24856 – 57. EPA further explains that changes to the rule are allowed, but such changes are discretionary.

Discretionary changes to RMP should be coordinated with OSHA and reflect costs. The RMP prevention program requirements, from its initial promulgation in 1966 until the 2017 (stayed) rulemaking, were effectively identical to the Occupational Health and Safety Administration’s (OHSA) Process Safety Management (PSM) program rules. This is not surprising as EPA is obligated to coordinate with OSHA pursuant to CAA section 112(r)(7)(D). “While EPA has amended the Risk Management Program several times after 1996 without corresponding OSHA amendments to its PSM standard, these changes did not involve the prevention program provisions, thus precluding any need for coordination with OSHA.” 83 Fed. Reg. at 24864. Although the EPA recognizes that “at times divergence between the RMP rule and the PSM standard may make sense given the agencies’ different missions,” the 2017 amendment “constitute a divergence from that longstanding practice.” Further, most of the anticipated costs associated with the new rule are aligned with OSHA preventive program requirements. Given the cost, coupled with the understanding that changes to the RMP program are discretionary, EPA action is a policy choice. Id.

An enforcement-led approach is preferred to over-regulation. EPA notes that only 8% of RMP covered facilities had reportable accidents and that 2% of the facilities reported 48% of such incidents. See 83 Fed. Reg at 24872. Accordingly, instead of burdening all facilities with new rules, EPA believes that it would be more efficient to fulfill the goal of RMP through an enforcement-led approach. Accordingly, “the RMP Amendments missed the opportunity to better target the burdens of STAA [Safer Technology and Alternatives Analysis] to the specific facilities that are responsible for nearly half of the accidents associated with regulated substances at stationary sources subject to the RMP rule.” 83 Fed. Reg. at 24872.

Reporters of RMP incidents beware. See above.

Process safety information (PSI) may have no regulatory purpose other than information required to conduct a Process Hazard Analysis (PHA). The 2017 Amendment added a requirement that process safety information be kept up to date. This requirement was removed without any explanatory discussion. Arguably, by adding and removing this requirement, the only obligation is to have up-to-date PSI at the beginning of a PHA. If so, any violation should be a one-time, single-day, violation.

Information release should be limited to that which is necessary for developing and implementing emergency response plans. Perhaps just semantics, but EPA modified the requirement to share information with local emergency planning and response organizations from relevant information to information necessary to develop and implement (fearing that the original language was too open-ended). See 83 Fed. Reg. at 24853. Arguably, the only true “relevant” reason to request such information would be as needed to develop and implement response plans. The revised proposed language will accomplish the goal and is less ambiguous.

EPA should not require information “synthesis” that connect-the-dots for intended bad actors. Whereas information may be accessible to the public through multiple sources, added hazard may occur through compiling the information in a single source. See 83 Fed. Reg. at 24867.

A public hearing on the proposed revisions to the RMP rules is planned for June 14, 2018 and comments must be submitted on or before July 30, 2018.

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